IN THE HIGH COURT OF KERALA AT ERNAKULAM
Ex FA No. 26 of 2006()
1. SAVIOUR, S/O. JOHN,
... Petitioner
Vs
1. E.V. MATHAI,
... Respondent
2. ROBERT, S/O. JOHN,
3. BINOY, S/O. SUDHAKARAN,
For Petitioner :SRI.JOSE JOSEPH ARAYAKUNNEL
For Respondent :SRI.BABU KARUKAPADATH
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice V.K.MOHANAN
Dated :21/11/2007
O R D E R
P.R.RAMAN & V.K.MOHANAN,JJ . (C.R)
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Ex.F.A. No.26 of 2006.
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Dated 21st November, 2007.
JUDGMENT
Mohanan,J.
The applicant in E.A.No.606/2004 in E.A.440/2004 in
E.P.No.58/2003 in O.S.No.20/1998 is the appellant herein who
challenges the order dated 16-8-2006 of the Principal Sub
Court, Kochi by which the application filed by the
appellant/petitioner under Order XXI Rule 101 read with Section
151 of C.P.C. was dismissed with costs holding that
O.S.No.134/2001 was a suit collusively filed by him against
his brother who is the 2nd respondent in the above application
and further found that he has no title or interest over the
petition schedule property under the sale conducted in
E.P.55/2002 in O.S.134/2001. It is the above order and
finding are impugned in this appeal.
2. The averments and claim of the appellant/petitioner
are as follows:
The appellant and 2nd respondent entered into a sale
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agreement on 10-8-1997 for the sale of 4 cents of property
including house bearing No.11/855 A situating in survey
No.1077/1 of Puthuvypu village for a total consideration of
Rs.3,60,000/- out of which Rs.15,000/- was paid as advance
on the date of agreement itself. It is the further case of the
appellant that as per the endorsement dated 9-12-1997, the
period of the agreement was extended for a further period of 2
years for execution and registration of the documents. It is
also averred that on 9-12-97, the appellant had paid the
entire balance amount towards consideration to the 2nd
respondent as the 2nd respondent was in absolute need of
money to meet his urgent demand. The appellant says that the
2nd respondent failed to perform his part of the contract which
constrained the appellant/petitioner to file O.S.134/2001
before the Sub Court, Kochi for specific performance and the
said suit was decreed with a charge over the property. Since
the said decree was not satisfied, the appellant/applicant has
preferred E.P.55/2002 for execution of the decree, the decretal
amount being calculated as Rs.4,03,472/-. Since no amount
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was paid, the petition schedule property therein, on which
there was a charge as per the decree, sold in court auction on
25-2-2003 and in the said auction, the appellant/applicant
participated and he bid the auction. The sale was confirmed
on 26-6-2003 and the appellant had obtained sale certificate
on 29-10-2003. Thereafter, as per the order in E.A.3/2004 in
E.P.55/2002 in O.S.134/2001, the appellant/applicant has
obtained delivery of the property and thus he is the absolute
owner of the petition schedule property and he is in possession
of the same. Thereafter, he was paying tax and he had
telephone connection to the said house and he was paying
electricity charges regularly and thus according to the
appellant/applicant he was fully enjoying the property as he
has got absolute ownership and possession without any
interference from any corner and the appellant/applicant was
not aware of any case relating to the petition schedule property
till 5-11-2004.
3. It is the further case of the appellant that only on 6-
11-2004 he came to know about the execution application
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No.440/2004 in E.P.No.58/2003 in O.S. 20/98 when Ist
respondent filed application for delivery of the petition
schedule property. Immediately thereafter, he approached the
court below by filing E.A.606/2004 under Order XXI Rule 101
read with section 151 of CPC with a prayer to allow the claim
petition contending that he is in absolute ownership and
possession over the petition schedule property for the reasons
stated in the affidavit accompanied thereto. He placed reliance
on the sale certificate as per the order in E.P.55/2002 in
O.S.134/2001 with respect to the whole property including
House No. 11/855 A and the aforesaid land property situated
in Survey No.1077/01 of Puthuvypu village.
4. The Ist respondent filed a detailed counter statement
controverting the claim and averments put forwarded by the
appellant in his claim statement. According to the Ist
respondent, the 2nd respondent is the brother of the
appellant/applicant and the decree in O.S.134/2001 was
obtained in collusion and fraud. It is stated that the brother
of the appellant namely, 2nd respondent was ex parte in
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O.S.134/2001. It is also stated that O.S. 134/2001 was filed
long after the decree in O.S.20/98. It is also averred that the
appellant/applicant who was the plaintiff in O.S.134/2001 which
was filed after filing E.P.58/2003 in O.S.20/98. It is further
stated that the Ist respondent bid the petition schedule
property in court auction on 7-10-2003 in E.P.58/2003. He
had categorically stated that the 2nd respondent did not
mention anything about O.S.134/2001 in the proceedings in
E.P. 58/2003 in O.S.20/98. Ist respondent has also stated
that he had deposited 25% of the auction price in
E.P.58/2003 and paid a sum of Rs.1,50,000/- towards the
balance amount on 20-10-2003. Accordingly, the said sale in
E.P.58/03 was confirmed on 16-12-2003. Thus he filed
E.A.406/2004 for delivery of the property.
5. A separate counter statement was filed by the 2nd
respondent wherein he had admitted that the
appellant/applicant is his brother. He had also admitted the
agreement dated 9-12-97. It is also stated that the
appellant/applicant has filed O.S.134/2001 against him. He
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had denied the allegation of collusion or fraud between
himself and the appellant. It is categorically stated that the
sale agreement was prior to the transaction between the 2nd
respondent and 3rd respondent. It is also stated that 2nd
respondent has filed I.P. 2/2001 and 3rd respondent was
aware of it. According to 2nd respondent, the 3rd respondent
filed execution petition suppressing all those facts.
6. The 3rd respondent has also filed a counter
statement. In the said statement, he had stated that the
appellant/applicant and 2nd respondent are brothers. He had
denied the sale agreement alleged to have entered into
between the appellant/applicant and the 2nd respondent. It is
also stated that the appellant was not having financial
capacity to pay the alleged sale price. It is claimed that 2nd
respondent has borrowed money from several persons
including himself. It is the specific case of the 3rd respondent
that he had filed O.S.28/98 and obtained an order of
attachment of property as per I.A.162/98 in O.S.20/98 which
was ultimately decreed against the 2nd respondent and he had
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filed E.P.58/03 for realisation of the decree amount by sale of
property of the 2nd respondent. It is also stated that in the
execution petition 2nd respondent entered appearance and
deposited a sum of Rs.20,000/- and also filed objection to
Rule 66 notice. It is the specific case that 2nd respondent in
his objection to Rule 66 notice or in the indigent petition did
not mention about the sale agreement. According to the 3rd
respondent, the property was sold in court auction on 7-10-
2003 after complying all the formalities required by law. Ist
respondent bid the property in court auction on 2-1-2003 and
thereafter 2nd respondent filed E.A. 373/2003 to set aside the
sale and that petition was dismissed and sale was confirmed.
It is also stated that 3rd respondent had filed C.A.111/2004 on
3-1-2004 for the issuance of cheque for return of the deposit
amount. The notice to the 2nd respondent in the above
cheque application was issued in the address of the petition
schedule property and the same was refused by the 2nd
respondent and returned. Thus according to the 3rd
respondent, even the very filing of O.S.134/2001 and the
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execution petition thereon and the delivery etc. are made
fraudulently and in collusion and the sole intention behind it
was to defeat the decree in O.S. 20/98. It is specifically
averred that the appellant/applicant was fully aware of the
entire proceedings in O.S.20/98 and he colluded
with 2nd respondent who is none other than his
brother and the sale in E.P.58/2003 was
conducted by complying all the statutory formalities and
therefore the appellant/applicant has no right or possession
over the petition schedule property.
7. During the course of enquiry and evidence, on the side
of the appellant/applicant, Exts.A1 to A4 were marked as
documentary evidence and examined the appellant himself as
PW-1. On the side of the respondents, RWs-1 and 2 were
examined and documentary evidence were marked as Exts.
B1 to B8.
8. The court below has formulated 6 points for its
consideration. In answer to points Nos.1 to 3, the court has
held that the present application ought to have been filed
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under Order XXI Rule 99 of C.P.C. instead of invoking the
provisions under Order XXI Rule 101 read with Section 151
CPC and the Court has the power to decide all questions
relating to title and interest of the parties over the property
in applications filed under Order XXI Rule 97 and 99. The court
below has found that sale in E.P.58/2003 in O.S.20/98 took
place after the sale in E.P.55/2002 in O.S.134/2001 and also
found that the disputed property has been attached in O.S.
No.20/98 as per order in I.A.162/98 long prior to the filing of
OS 134/2001. Therefore according to the court below, the sale
in E.P.55/2002 in O.S.134/2001 was conducted at a time
when the order of attachment in O.S. 20/98 was in force. The
court below also came into the conclusion that the decree for
possession contemplated under Order XXI Rule 99 will be
decree for recovery of possession, partition etc., in which it
can be executed by applying for delivery of possession and
therefore according to the court below, Order XXI Rule 99 has
no application and the proper provision which ought to have
been invoked is Order XXI Rule 58 of CPC. But according to
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the court below, before filing the present application, the
sale has already been taken place and therefore Order XXI
Rule 58 cannot be invoked by the appellant/applicant. Hence,
according to the court below, the remedy is only to file a
separate suit to establish the title of the appellant/applicant
over the disputed property. Thus the court below has held
that the remedy of the appellant/applicant under Order XXI
Rule 58 is already lost on account of the sale of the property
and he has no right to come under Order XXI Rule 99 since
the decree was not for possession. Thus, according to the
court below, the application filed by the appellant/applicant is
not maintainable.
9. After having considered certain circumstances
discussed in the order, the court below found that there is
some force in the arguments advanced on behalf of the
contesting respondents regarding the genuineness of the
agreement for sale set up by PW-1 and 2nd respondent.
According to the court below, the appellant being the plaintiff
in O.S.134/2001 is expected to seek for a decree for specific
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performance of the contract as his case is that he had paid the
entire consideration, but according to him, he is satisfied with
the decree for recovery of money only and the said stand of
the appellant seriously doubted by the court below especially
in the absence of any explanation as to why he did not
challenge the decree as per which the relief of specific
performance is denied. Therefore, the above conduct of the
appellant/applicant was suspicious and it is held that
O.S.134/2001 is not a genuine suit. It is also held that PW.1-
appellant/applicant and 2nd respondent being direct brothers
and in the absence of anything to show that they were on
inimical terms, the suit was filed in collusion and on the basis
of such inference, the court has further gone to say that there
will not be any difficulty for manipulating an agreement for sale
as Ext.B3 and to mention the previous agreement and
managed to get a decree in O.S.134/2001. Thus the court
below came into the conclusion that O.S.134/2001 is a suit
collusively filed by PW-1 and his brother, the 2nd respondent to
defeat the decree holder in O.S.20/98 and held that the
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petitioner/appellant has no title or interest over the petition
schedule property under the sale conducted in E.P.55/2002 in
O.S.134/2001 and thus the application/petition filed by the
appellant was dismissed. It is the above finding and the order
which is impugned in this appeal.
10. We have heard elaborately the counsel appearing
for the parties in this appeal. The learned counsel appearing
for the appellant has strenuously argued that the appellant is
in absolute ownership and possession of the petition schedule
property through the sale conducted by the court. According
to him, 3rd respondent as well as Ist respondent had
suppressed the fact of earlier sale and delivery of the property
in favour of the appellant. According to the counsel, the
factum of existence of O.S.134/2001 and the charge decree
based on which the subsequent sale and delivery of the
property to the appellant are not at all in dispute. According to
the counsel, the only case of respondents 1 and 3 in
O.S.134/2001 is that the decree thereon was obtained
fraudulently and collusively and therefore the same is not
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binding on them. According to the counsel, the finding of the
court below that the decree in O.S.134/2001 was obtained by
fraud and collusion are based upon conjectures and surmises.
He has also argued that the finding of the court below that the
appellant should have filed a claim under Order XXI Rule 58 of
C.P.C. is incorrect and further argued that the court below is
bound to entertain the application under Order XXI Rule 99 and
also further assailed the finding of the court below that the
only remedy open to the appellant is to file a separate suit.
The counsel appearing for the respondents vehemently
opposed the appeal and argued that the appellant/applicant
got the decree collusively and fraudulently and therefore
whatever objection raised by him against the execution of the
decree in O.S.20/98 are not sustainable and thus supported
the impugned order of the court below.
11. The appellant/applicant when approached the court
below, though he filed E.A.606/2004 in E.A.440/2004 under
Order XXI Rule 101 read with section 151 C.P.C, the prayer was
to allow his claim after having found that he is having
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absolute ownership and possession over the petition schedule
property, namely, the house bearing No.11/855 A and 4 cents
of property situating in Sy.No.1077/1 of Puthuvypu village as
he has got sale certificate as per the auction sale in E.P.
55/2002 in O.S.134/2001. If a person approached the court
below with such prayer, what is the duty and jurisdiction of
the court, is the question to be answered in this appeal.
Though it is disputed, the claim as on the date of the
impugned order is that the appellant/applicant has got
absolute ownership and possession over the petition schedule
property as per the sale conducted at the instance of the
execution court on 25-2-2003 and that the said sale was
confirmed on 26-6-2003 and the sale certificate was issued
on 29-10-2003. It is the further case of the
appellant/applicant that he had filed E.A.3/2004 for delivery
and thus he was in absolute possession and ownership over
the property in question and he had paid building tax,
electricity charges and even he has got telephone connection
to the said house. Of course, there is dispute regarding the
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mode of obtaining the decree and the suit and also regarding
the agreement which is the subject matter in O.S.134/2001.
But the subsequent development which discernible from the
earlier mentioned facts would show that his claim is a genuine
one and the same has to be entertained and a just and
proper decision has to be taken on such claim. At this juncture,
it is relevant to note that in view of the mandatory provisions
contained in Section 47 of CPC, the execution court has got a
duty to determine all questions relating to the execution,
discharge or satisfaction of the decree and a separate suit is
specifically barred for deciding the above issues. If that be so,
the appellant/applicant has no other option but to approach
the court below by invoking Order XXI Rule 99 of CPC. But the
court below went wrong in holding that either Rule 58 or
Rule 99 of Order XXI cannot be invoked by the
appellant/applicant since his claim was preferred after the
sale of the property and the decree mentioned in Rule 99 is a
decree for the possession of such property. But in the present
case, the decree is not for possession. The above finding of
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the court below is absolutely unfounded, illegal and
unsustainable. The court below ought to have construed the
above provisions in the light of the mandatory nature of the
provisions and the specific bar contained in section 47 of
C.P.C. In the decision reported in Brahmdeo Chaudhary v.
Rishikesh Prasad Jaiswal (AIR 1997 S.C 856), the Apex
Court has held:
“In short the aforesaid statutory
provisions of Order XXI lay down a complete code
for resolving all disputes pertaining to execution of
decree for possession obtained by a decree-holder
and whose attempts at executing the said decree
meet with rough whether. Once resistance is
offered by a purported stranger to the decree and
which comes to be noted by the Executing Court
as well as by the decree-holder the remedy
available to the decree holder against such an
obstructionist is only under Order XXI, Rule 97
sub-rule(1) and he cannot by-pass such
obstruction and insist on re-issuance of warrant
for possession under Order XXI, Rule 35 with the
help of police force, as that course would amount
to by-passing and circumventing the procedure
laid down under Order XXI, Rule 97 in connection
with removal of obstruction of purported strangers
to the decree. Once such an obstruction is on the
record of the Executing Court it is difficult to
appreciate how the Executing Court can tell such
obstructionist that he must first lose possession
and then only his remedy is to move an
application under Order XXI, Rule 99 CPC and pray
for restoration of possession. The High Court by
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the impugned order and judgment has taken the
view that the only remedy available to a stranger
to the decree who claims any independent right,
title or interest in the decretal property is to go by
Order XXI, Rule 99. This view of the High court
on the aforesaid statutory scheme is clearly
unsustainable. It is easy to visualise that a
stranger to the decree who claims an independent
right, title and interest in the decretal property
can offer his resistance before getting actually
dispossessed. He can equally agitate his
grievance and claim for adjudication of his
independent right, title and interest in the decretal
property even after losing possession as per Order
XXI, Rule 99. Order XXI Rule 97 deals with a
stage which is prior to the actual execution of the
decree for possession wherein the grievance of
the obstructionist can be adjudicated upon before
actual delivery of possession to the decree-holder.
While Order XXI, Rule 99 on the other hand deals
with the subsequent stage in the execution
proceedings where a stranger claiming any right,
title and interest in the decretal property might
have got actually dispossessed and claims
restoration of possession on adjudication of his
independent right, title and interest dehors the
interest of the judgment-debtor. Both these types
of enquiries in connection with the right, title and
interest of a stranger to the decree are clearly
contemplated by the aforesaid scheme of Order
XXI and it is not as if that such a stranger to the
decree can come in the picture only at the final
stage after losing the possession and not before it
if he is vigilant enough to raise his objection and
obstruction before the warrant for possession gets
actually executed against him.
xx xx xx xx
xx xx xx xx
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It is further held in the decision:
“On the contrary the statutory scheme envisaged
by Order XXI, Rule 97 CPC as discussed earlier
clearly guards against such a pitfall and provides
a statutory remedy both to the decree-holder as
well as to the obstructionist to have their
respective say in the matter and to get proper
adjudication before the Executing Court and it is
that adjudication which subject to the hierarchy of
appeals would remain binding between the parties
to such proceedings and separate suit would be
barred with a view to seeing that multiplicity of
proceedings and parallel proceedings are avoided
and the gamut laid down by Order XXI, Rules 97
to 103 would remain a complete code and the
sole remedy for the concerned parties to have
their grievances once and for all finally resolved in
execution proceedings themselves”.
12. Thus it can be seen that one of the course open to
the appellant is to invoke Rule 99 of Order XXI of C.P.C. But
the court below took a stand which is diametrically opposed to
the statutory provision. In order to come into a conclusion that
Rule 99 of Order XXI is not applicable in the present case, the
court below very much relied upon the first limb of the Rule
99, namely as quoted by the court below, ” holder of a decree
for the possession of such property”. The remaining portion of
Rule 99 of Order XXI has been neglected by the court which
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says: “or, where such property has been sold in execution of a
decree by the purchaser thereof, he may make an application to
the Court complaining of such dispossession”. In the light of
the above decision, it can be seen that the aggrieved person
need not wait till he is physically dispossessed from the
property. If that be so, the appellant has rightly approached
the court below against the dispossession and with a prayer
“to allot his claim after having found that he is having absolute
ownership and possession over the petition schedule property,
namely, the house bearing No.11/855 A and 4 cents of
property situating in survey No.1077/1 of Puthuvyppu village
as he has got sale certificate as per the auction sale in
E.P.55/2002 in O.S.134/2001” and certainly, the court below
ought to have consider his claim and to dispose of the same
in accordance with law and on merits. But instead of taking
such a stand, the court below went on a footing that such a
petition is unsustainable. We are unable to endorse the
above approach and the finding of the court below.
13. Without an elaborate analysis upon evidence it is
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also not correct to say that the appellant cannot invoke Rule 58
of Order XXI of CPC. In E.P.58/2003 in O.S.20/98, the auction
sale was on 7-10-2003, but in O.S.134/2001, auction sale was
on 25-2-2003. The confirmation of sale in OS 134/2001 was on
26-6-2003 whereas in O.S 20/98, the confirmation was on 16-
12-2003. So, as per the above datas, one can come into a
safe conclusion that the sale of the petition schedule property
in favour of the appellant/applicant was taken place much
prior to the date of sale in favour of Ist respondent. According
to the appellant/applicant, the agreement for sale which is
the subject matter of OS 134/2001 was on 10-8-97 and the
period for executing the document was extended to 2
years as per the agreement dated 9-12-97 as evidenced by
Ext.B3. According to respondents 1 and 3 the sale
agreement was entered into with a view to defeat the
outcome in O.S. 20/98. However all these aspects are to be
proved and a finding is yet to be arrived on the basis of
evidence and materials to be adduced. Therefore, the finding
of the court below at this stage that Order XXI Rule 58 is not
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available to the appellant, is not correct. In paragraph 16 of
the impugned judgment, the court below has held that Order
XXI Rule 58 cannot be invoked since before filing the present
application by the appellant, the sale has already been taken
place and further found that the appellant/applicant cannot
invoke Order XXI Rule 99 of CPC as the same is not
sustainable and the court below has suggested that the
remedy is only to file a suit to establish the appellant’s title
over the property. The above suggestion is opposed to the
statutory bar contained in Section 47 of C.P.C. Therefore,
especially in the light of the judgment of the Apex Court, in
Brahmdeo Chaudhary’s case (AIR 1997 SC 856), we are of
the opinion that the appellant’s remedy is only under Order
XXI Rule 99 C.P.C. and the court is bound to entertain such
petition and to take a decision on merits on the basis of the
evidence and materials adduced by the parties.
14. Without proper evidence and appreciation of the
facts involved in the case, the court below came into the
conclusion that the objection and claim raised by the appellant
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is devoid of any merit as according to the court below,
O.S.134/2001 is a suit filed collusively by PW-1-the
appellant/applicant against his brother-2nd respondent to
defeat the decree holder in O.S 20/98 and thus found that the
appellant has no title or interest over the petition schedule
property and accordingly, the petition was dismissed. In order
to come into the above conclusion and decision, the court
below very much relied on the following circumstances, viz.,
the appellant/applicant who is PW-1 and the 2nd respondent are
brothers, who are the parties in O.S.134/2001, since full
consideration has already been paid and no other formalities
were yet to be complied, there was no need to extend the
period of agreement, the appellant/applicant and 2nd
respondent miserably failed to challenge the plea; that 2nd
respondent in paragraph 4 of Ext.B8 written statement has
stated that there is no other agreement and therefore
according to the court below, all claims based upon the
agreement which is the subject matter of O.S 134/2001 are
false, based upon Exts.B1 and B2 the court below is of the
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opinion that the non-production of the agreement therein
shows that the plea behind the agreement etc. are false and it
was a suit filed in collusion, according to the court , Ext.B5 is
a copy, there was nothing mentioned in the agreement which
is the subject matter of OS 134/2001. Thus according to the
court below, the so called agreement dated 19-12-97, i.e.
Ext.B3 is a manipulated document. Further, the court below
doubted the stand of the appellant/claimant in his satisfaction
with the decree for money only and for not asking the
property. According to the court, since the brothers are not in
inimical terms , the suit might have been filed collusively and
fraudulently. If the appellant was put in possession at the
time of the transaction, there was no need for him to apply for
delivery of property and, finally, another circumstance
considered by the court below is that after filing the objection
in E.P.58/2003, nothing was mentioned about the agreement
etc. On the basis of the above mentioned circumstances, the
court below came into the conclusion that OS 134/2001 was
filed fraudulently and collusively with a view to defeat the
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outcome in OS 20/98.
15. In the decision in State of A.P. v. Suryachandra
Rao reported in {(2005) 6 SCC 149)}, the Apex Court held :
“By “fraud” is meant an intention to
deceive; whether it is from any expectation of
advantage to the party himself or from ill-will
towards the other is immaterial. The expression
“fraud” involves two elements, deceit and injury
to the person deceived. Injury is something
other than economic loss, that is, deprivation of
property, whether movable or immovable, or of
money, and it will include any harm whatever
caused to any person in body, mind, reputation
or such others. In short, it is a non-economic or
non-pecuniary loss. A benefit or advantage to
the deceiver, will almost always cause loss or
detriment to the deceived. Even in those rare
cases where there is a benefit or advantage to
the deceiver, but no corresponding loss to the
deceived, the second condition is satisfied”.
In the very same decision, after having considered the
decision in Chengalvaraya Naidu v. Jagannath {(1994) 1
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SCC 1)}, the Apex court has held that “fraud” is an act of
deliberate deception with the design of securing something by
taking unfair advantage of another. It is a deception in order
to gain by another’s loss. It is a cheating intended to get an
advantage. In paragraph 10 of the above decision, the Apex
court has further held that “an act of “fraud” on court is
always viewed seriously. A collusion or conspiracy with a view
to deprive the rights of others in relation to a property
would render the transaction void ab initio. Fraud and
deception are synonymous. Although in a given case a
deception may not amount to fraud, fraud is anathema to all
equitable principles and any affair tainted with fraud cannot be
perpetuated or saved by the application of any equitable
doctrine including res judicata”.
16. In this regard, it is relevant to note that according
to the appellant, there was an agreement regarding the sale of
the property even prior to the filing of O.S.20/98. Of course,
the above agreement is in dispute, but the same has not been
properly considered by the court below in resolving the dispute
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in the present claim. Unless a thorough enquiry is conducted
on all those facts and without evidence and materials, it cannot
be said that whether it was a false claim regarding the
agreement, especially, the agreements dated 10-8-97 and 9-
12-97 in O.S.134/2001. In order to come into a definite
conclusion regarding collusion and fraud with respect to the
filing of O.S.134/2001, clear materials and concrete evidence
are absolutely necessary. It is also important to note that
merely because the appellant and 2nd respondent are
happened to be brothers, no collusion or fraud can be inferred
unless there are positive evidence and materials. Therefore,
the finding of the court below in that respect is also not
correct. Yet another point found by the court below against
the appellant is that he was simply satisfied with a decree for
money in O.S.134/2001, which is a suit for specific
performance, instead of asking for a decree for specific
performance at the instance of the court for obtaining the
property. The plaintiff is the master of the plaint and it is for
him to mould the relief and also to take steps if he is
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unsatisfied with the decree or relief granted. In the present
case, as revealed by the records, though the suit was for
specific performance, a decree for money with a charge over
the property was granted, which according to that court, was
just and proper in the facts and circumstances of case and the
plaintiff, according to his wisdom, has chosen to accept the
decree. Nobody can find fault with such decision of the
plaintiff/appellant.
17. In the present appeal, one of the grounds taken by
the appellant is that the court below has committed wrong
relying on conjectures and surmises for the conclusion of fraud
and collusion; in obtaining the decree in O.S.134/2001. That
finding is arrived even without calling for the records of the
case file. A court of law cannot act upon a mere and vague
averment regarding “fraud”. Plea of “fraud” must be taken
specifically and the same shall be substantiated with cogent
evidence and materials. It appears that the court below
proceeded on an understanding that the appellant’s/applicant’s
case will not come within the purview of Order XXI Rule 99
EXFA 26/06
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and hence, by simply relying on the above circumstances, the
court below came into an erroneous conclusion that
O.S.134/2001 was filed with oblique motive and a decree
thereon was obtained on fraud and collusion. We cannot
support the findings. Therefore we are of the opinion that the
court below has to reconsider the entire matter afreshly after
giving opportunities to both the parties to raise their
respective pleadings effectively and to advance evidence to
substantiate such pleas. Appellant seeks for an opportunity to
coproduce certain additional materials in support of their case.
Since we are remitting the matter, an opportunity be given to
the parties to produce additional evidence if they chose to file,
and decide the case afresh considering the materials as well.
18. In the light of the above discussion, we are inclined
to allow the appeal and accordingly, the order of the court
below dated 16-8-2006 in E.A.606/2004 in E.A.440/2004 in
E.P.58/2003 in O.S.20/1998 on the file of the Principal Sub
Court, Kochi is hereby set aside and the matter is remanded
to the court below for fresh consideration after giving
EXFA 26/06
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opportunities to the parties concerned.
In the result, the appeal is allowed and the parties are
directed to bear their respective costs and they are further
directed to appear before the court below on 3-1-2008.
P.R.RAMAN,JUDGE.
V.K.MOHANAN, JUDGE.
kvm/-
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